Out of Office: Vacancies, Acting Officers, and Day 301

Out of Office: Vacancies, Acting Officers, and Day 301

Legal Sidebari

Out of Office: Vacancies, Acting Officers, and
Day 301
November 1, 2017
Across the executive branch, acting officers are currently serving in vacant advice and consent positions,
temporarily filling these offices until a permanent officer is nominated by the President and confirmed by
the Senate. Some of these offices remain vacant because the Senate is still considering whether to confirm
a nominated officer, but others are vacant because President Trump has not yet submitted a nomination to
the Senate. According to one tracker, there are currently 277 offices that have no formal nominee. Some
of the acting officers filling these vacant advice and consent positions may soon face an important
deadline—one that could limit their ability to continue performing the duties of the vacant office.
Under federal law, most acting officers may only serve for a limited amount of time. Specifically, the
Federal Vacancies Reform Act of 1998 (Vacancies Act), which generally governs the ability of
government employees to temporarily perform the “functions and duties” of a vacant advice and consent
position, provides that acting officers may serve for a period of 210 days after the vacancy occurs.
However, after a new president enters office, to account for the reality that many high-level officials leave
when the executive branch transitions to a new administration, the start of this 210-day period is delayed.
These extended time periods for acting service may apply to many of the current vacancies in the
executive branch, and are set to start expiring in November. So how do we figure out whether any given
employee is still allowed to serve as an acting officer, and what the consequences are if an acting officer
violates the Vacancies Act?
How Does the Vacancies Act Limit Acting Service?
The Vacancies Act limits the ability of a government officer or employee to temporarily perform the
duties of a vacant office in an executive agency, if that position is one “for which appointment is required
to be made by the President, by and with the advice and consent of the Senate.” (This language echoes the
Appointments Clause of the U.S. Constitution, which generally requires high-level “Officers of the
United States” to be appointed by the President, “by and with the Advice and Consent of the Senate.”)
The Vacancies Act governs acting service in most advice and consent positions, with limited exceptions.
However, the Vacancies Act applies only if an acting official attempts to perform a “function or duty” that
is established by statute or regulation and is “required” by that statute or regulation “to be performed by
the applicable officer (and only that officer).” Stated another way, the Vacancies Act applies only to the
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nondelegable duties of an office—those duties that are exclusively assigned to that particular office.
Accordingly, the Vacancies Act likely would not prevent a government employee from performing any
delegable responsibilities of the vacant office.
Under the Vacancies Act, only certain classes of government employees may perform these nondelegable
duties, and they may only do so for a limited period of time. There are two distinct periods during which
an employee may serve as an acting officer: (1) for a 210-day period, beginning on the date that the
vacancy occurred; or (2) if the President nominates someone to that office, for the period that the
nomination is pending in the Senate. There is no limitation of days on this second period—so long as a
nomination is pending, an acting officer may continue to serve. But if no nomination is submitted to the
Senate, the 210-day period governs the acting officer’s service.
Although the 210-day period usually begins on the date of the vacancy, a different set of rules applies
when a new president enters office. If a vacancy exists on the date of the new president’s inauguration,
then the 210-day period will begin 90 days after inauguration. If a vacancy occurs within 60 days after the
inauguration, the 210-day period begins 90 days after the date the vacancy occurred. Because a new
president entered office this year, this alternate scheme applies to any offices that were vacant on January
20, 2017 or that became vacant within 60 days thereafter. Effectively, any acting officers filling any of
these vacant offices may serve for a 300-day period. The beginning of that period, however, will depend
on when the particular vacancy occurred.
The Vacancies Act also creates a mechanism to help track the existence of executive branch vacancies and
the tenure of acting officers. Agency heads are required to notify the Comptroller General and “each
House of Congress” of vacancies and of the officers temporarily filling those vacancies. Further, if the
Comptroller General determines that an acting officer is serving beyond the statutory period of service, he
must report that fact to certain congressional committees, as well as to the President and the Office of
Personnel Management.
What Happens on Day 301?
A number of acting officers are currently filling vacancies that occurred during the presidential transition
period. For those offices that were vacant on or shortly after Inauguration Day, the 210-day period, with
the 90-day extension, will come to an end beginning sometime in November. If an acting officer remains
in office beyond this 300-day period, and if the President has not submitted any nomination to that office,
then the acting officer runs the risk of violating the Vacancies Act.
On Day 301, whenever that day might occur for a particular office, the office would be designated vacant,
for purposes of the Vacancies Act, and only the head of the agency would be able to perform the functions
and duties of that vacant office. (If an office designated vacant under this provision is that of the agency
head, it appears that no one can temporarily perform the functions and duties of that office under the
Vacancies Act.) If the acting officer remains in office and attempts to perform a nondelegable function or
duty—one that a statute or regulation expressly assigns to that office—that action will “have no force or
effect.” In the words of the Supreme Court, it will be “void ab initio”: void from the beginning, as if the
act had never been done. (There are a few specifically named offices that are exempt from this provision,
but it is unclear what the consequences are if one of those offices is staffed by an acting officer serving in
violation of the Vacancies Act.) Critically, the Vacancies Act also prohibits an agency from subsequently
ratifying any void actions. This means that the agency can’t cure any violations by reissuing its decision
through the proper processes. Notably, if the President were to officially nominate someone else to the
vacant office, the previous acting officer might be able to resume temporary service, but likely would not
be able to ratify any legally defective actions taken in the interim between Day 301 and the date of
nomination.

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By rendering noncompliant actions void, the Vacancies Act opens up the possibility of litigation: third
parties injured by the decisions of an acting officer might challenge those agency actions in court. If a
court agrees that the challenged action violated the Vacancies Act, then it would likely vacate that agency
action. But the judicial process is slow and depends on a person with standing actually bringing a lawsuit.
The limited amount of case law examining the Vacancies Act suggests that such cases are relatively rare.
As discussed, the law also contains reporting requirements, suggesting that the Comptroller General may
be able to bring Congress’s attention to any vacant positions that have reached the end of the applicable
period of acting service.
For more information on how the Vacancies Act operates, see CRS Report R44997, The
Vacancies Act: A Legal Overview, by Valerie C. Brannon.

Author Information

Valerie C. Brannon

Legislative Attorney

Disclaimer
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